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The Future of State Sovereignty

Joseph Raz

King’s College London Dickson Poon School of Law
Legal Studies Research Paper Series: Paper No. 2017-42
 THE FUTURE OF STATE SOVEREIGNTY

JOSEPH RAZ1

Abstract

Advances in the legalisation of international relations, and the growing number

of international organisations raise the question whether state sovereignty had
its day. The paper defines sovereignty in a way that allows for degrees of
sovereignty. Its analysis assumes that while sovereignty has become more
limited, a trend which may continue, there is no sign that it is likely to
disappear. The paper offers thoughts towards a normative analysis of these
developments and the prospects they offer. Advocates of progress towards
world government, while wise to many of current defects, are blind to the evils
that a world government will breed, and to the advantages of relatively
sovereign political societies. The paper identifies the advantages of the
legalisation of international relations, and the growth of international bodies.
The dilemma of internationalisation is that its advantages can be obtained only
if international organs acquire some of the characteristics of successful
sovereign political societies, in attracting the loyalty and shaping the sense of
identity of their members – a faraway prospect. The best we can hope for is a
mix international regime of relatively sovereign states subject to
extensiveinternational organisations and laws. That requires a pluralistic
jurisprudence of international organisations, allowing for great local diversity,
of which we have so far seen only small beginnings.

1 The paper was written as a talk, and retains its character as a talk.

Electronic copy available at: https://ssrn.com/abstract=3073749

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1. Introduction

The paper is a speculative reflection on the theoretical implications, or some of

them, of contemporary developments in the international scene.

There is a widespread view that the international sphere has undergone, and is
undergoing, radical and swift changes. Naturally, there is no agreement on the
main sources or features of the changes: the end of WWII, the end of the cold
war, the rise of American supremacy, the end of American supremacy,
economic globalisation, etc.

To the more legally minded: The explosive development of International Law,

and related phenomena such as the emergence of the WTO, the rise of
International Human Rights, and the emergence of International
Administrative Law may seem to be the decisive factors.

From my point of view one can be ecumenical and take all of these and others
as features of the changes.

It is far from clear whether the changes, whatever they are, call for a
theoretical rethink. Should not theories of law, for example, be robust in the
sense of being true of law in all places, all times?

Yes and No:

A successful general theory of law would (a) identify the important essential
features of the law, and (b) explain why the law is or was central to the self-
consciousness and political organisation of some societies. The two desiderata
may point in different directions: think of sharia law, or of rabbinical law, or
canon law. All are law and a good theory of law will confirm that. But in many
countries when these laws were dominant features of their political societies
the best theories of the essential structures of these societies may well not

Electronic copy available at: https://ssrn.com/abstract=3073749

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have identified them as law, in our sense. Their mingling of law, morality and
theocracy are missed when we think of them as law, that is as instances of the
type of social practice or social organisation many instances of which do not
allow for the kind of mingling of law and morality that sharia law exemplifies.

So good theorists of these societies may well have had a different analysis of
their normative structures, different from that of modern political societies, in
which law dominates.

By the same token, a time may come, may have come, when the fact that
there are and are likely to remain state legal systems in contemporary political
societies is consistent with a need for new theory that will show - if this is
indeed the case - that nowadays, a state legal system is no longer the or one of
the most important normative structures in our societies.

I am not, however, going to make that possibility the core of my speculation.

Not quite.

What has attracted calls for a new theory was the so-called Death of the State
- perhaps mostly expressed these days in less extravagant terms as the rise of
legal pluralism or transnational law. I will not discuss these theoretical
developments themselves. Rather my aim is to examine the general case for
rethinking legal theory in light of the erosion of the Post-Westphalian doctrine
of State Sovereignty.

For a long time Legal theory has been focussed on state law as the paradigm of
a legal system. The recognition of the principle of state sovereignty in article
2(7) of the UN charter seemed to promise that that focus would remain
justified for a long time to come. But the subsequent erosion of state
sovereignty raises doubts, some of which I will discuss.

A Note on Method:

Electronic copy available at: https://ssrn.com/abstract=3073749

 Sovereignty/Raz

To repeat: This is a speculation about some aspects of possible directions in

which international relations may proceed. I focus it on the future of
sovereignty for it seems plausible to think that the way state sovereignty
seems to be changing or at least the way it is subjected to pressure to change,
encapsulates some central trends in the development of international
relations.

I will be slow to judge the desirability or undesirability of different options and

trends, though some thoughts about it will come to the fore later on. Even
before that the analysis is impregnated by normative considerations. Most
prominent among those will be:

First, judgements that certain features are important, and that’s why the
analysis is based on them, or highlights them, their importance being in their
relevance to whether institutions, trends etc. are more or less desirable, and

Second, that certain features are ‘healthy’ that is, conducive to the well-
functioning of the institutions concerned.

Both are not ordinary normative properties, as health can contribute to the
institutions being bad as well as to their being good, and importance may mark
undesirable as well as desirable features.

2. A Prospect of World Government?

Some people discern a trend that may lead to the eventual emergence of a
world government. Why think that that may be our actual direction of
movement? Here is one very speculative suggestion: over the last 60 years or
so, and at an accelerating pace, more and more aspects of international
relations (i.e. relations among states, among international institutions, and
between states and institutions) have been legalised, as I shall say. That is,

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standards of international law governing them have emerged, and matters

that until then were decided by negotiation, or actions leading to more or less
coercive outcomes, are now settled in processes that involve reference to
these international standards. I am trying to be realistic. The difference is not
that now these matters are determined by the international standards. Often
they are not, but even then the existence of the standards has an impact on
the outcome. The outcome is tilted towards these standards. Perhaps we can
say that the standards provide a default position, though one can negotiate
one’s way, more or less coercively, away from their straightforward
application.

Does the growing legalisation of international affairs constitute an

improvement? Not necessarily. After all laws can be good, bad or indifferent,
and their impact in different circumstances may be bad even if the law is
otherwise good. But perhaps there is at least one feature of legalisation that
tends to give it some value in many, if not most, situations. In as much as an
international standard has an impact on the outcome of disputes and
disagreements it distances the outcome from one that reflects the balance of
power between the competing sides at the time the dispute arises or is being
dealt with. In that sense it tends to make the outcome more impartial, and
often that may be an advantage. It may tend to make the settlements of
disputes more equitable, but quite apart from that it may make the outcome
more stable, as, where the way the outcome is reached is thought to be
impartial, or relatively impartial, it may be more willingly accepted and more
faithfully implemented.

As I keep repeating, these observations are empirical speculations,

whose truth may vary depending on circumstances. Sometimes a treaty applies
to predictable circumstances, and that enables it to enshrine a bias favouring

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one party. In such circumstances a treaty may make things worse rather than
better.

The points relevant to our reflections on world government are, first, that
legalisation encourages the emergence of dispute-resolution bodies and
procedures that will adjudicate disputes and disagreements by applying the
international standards. And second that these bodies generate pressure
towards harmonisation, towards shaping the emerging international standards
in ways that make them express a more or less coherent outlook manifested in
the way they govern international relations.

All of this may happen and leave us a long way from world government. But it
represents a trend that may culminate in arrangements that are or are close to
the existence of a world government.

The sensibly sceptical will say that mine is nothing but a Just So story. And
taken literally and independently that is what it is. It should be taken as
pointing to trends that, given appropriate circumstances, would exert pressure
towards the emergence of something like a world government. Among other
things a lot depends on whether people would welcome or dread such a
development.

3. Analytic Framework

Defining sovereignty

But what is a world government? And what kind of systems of international

relations are inconsistent with it? At this point speculation about the future
invites a degree of conceptual clarity. The two – conceptual clarity and
speculation about the future – are not as distinct as may be thought. Concepts

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die or get transformed, and in speculating about the future we should also
speculate about the concepts that will become dominant in people’s

understanding of their own political organisations.

I’ll focus on one alternative to world government: the existence of many

sovereign political systems. I discuss it not because it is the most likely or most
desirable alternative. But because it is where we are now. It is the state of
international relations that we are moving away from.

‘Sovereignty’ is used in multiple ways and in many diverse contexts. So there is

inevitably a stipulative element in my clarification of it. I do not mean to deny
the propriety of other uses or meanings - merely to clarify how it is used by
me. I am of course talking of sovereignty of political societies, like states. But I
get there by defining the sovereignly of authorities.

Absolute sovereignty, I will suggest, consists of a double immunity. An

authority is sovereign if both internal authorities and external authorities
acknowledge that they do not have the power to rescind or modify its
decisions and rulings.

Weaker sovereignties can be defined by relativizing this definition to particular

subject matters, or in other ways, or by having a comparative scale, even a
crude one, of degrees of sovereignty. Such weaker concepts will not be useful
unless they cover major aspects of the powers to take decisions.

Absolute World Government will exist when there will be only one authority
such that there are no authorities outside it, and all internal authorities
acknowledge that its decisions are immune to change by them.

Authority and Political Societies

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The question is what are those internal and external authorities? The
reference is to those that are inside and those that are outside the relevant
political society. That is, we define sovereignty as a property of a political
authority that marks its standing both inside and outside a political society of
which it is a part.

The connection between sovereignty and political society complicates matters.

We are concerned with one, broadly conceived, yet only one type of political
society. Think about authorities in the sense in which an essential feature of
authority is that it possesses a general normative power. A normative power
is an ability to change someone’s practical reasons (which includes changing
their property or other rights and their normative status) by one’s say so,
provided that the reason for having that ability is the value or desirability of
that person having it.

As well as authorities so understood there can be proclaimed or believed

authorities, i.e. people or institutions that claim that they have authority or
who are believed by some people to have authority of the kind we are
considering. Some such proclaimed or believed authorities do in fact function
as (justified) authorities would function had those subject to them been willing
to put up with the exercise of their authority. These are de facto authorities.

To clarify: A de facto authority may or may not be a justified, legitimate

authority. It is one that claims or is believed to have legitimate authority, and
does act as one would were one to have that legitimate authority (though not
necessarily in the sense of acting as justly etc. as a good legitimate authority
would), and those affected by those actions are putting up with them, do not
generally resist them. From now on, when referring to authorities I will be
referring to de facto authorities, unless the contrary is indicated.

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Sometimes authorities of this kind are part of the definition of a political

society. This can take various forms. For example, there may be a political
society consisting of all, or a certain subgroup, of those subject to that
authority, or of all or a subgroup of those who can control the constitution of
the authority (by election, or otherwise). States are an example of such
political societies, but there are others.

It is not assumed that members of political societies regard their relations to

the authorities, or the existence of those authorities, as primary justification of
the existence of the political society. They may regard common ethnicity,
geographical distinctness, common interests, etc. as the justification, or they
may doubt or deny that there is any justification. What matters here is that the
boundaries of the society are determined in a way that is essentially related to
the relevant authorities. That gives us a necessary condition for the existence
of a political society: an essential relationship to one or more authorities.

What would be a sufficient condition for the existence of a political

society? Perhaps one additional condition, which moves us closer to having a
sufficient condition, is that a political society is an authority-defined society,
where the relevant authorities constitute a harmonious authority group.

In talking of a harmonious authority group I am trying to distance myself from

any association with the Kelsenean framework, whereby a political system is
defined by reference to relations of constitution and authorisation: one
political system consisting of all the authorities that derive their powers from
one norm, a norm that Kelsen thought has additional features that make it a
basic norm (in his meaning of the term) and that Hart thought has other
features that make it the ultimate rule of recognition (in his meaning of the
term). Hart, even though he remained wedded to the idea of a single

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organising rule, pointed the way towards an alternative approach that

dispenses with it. He suggested that what keeps a legal system together, what
makes it one, is the attitude of the population, or sections of it, to the
authority of institutions; that is, the acceptance of that authority by those
subject to it. My suggestion is that we come closer to a sufficient condition for
the existence of a distinct political society if it is an authority-defined society,
whose members, by and large, accept the authority of those defining
institutions over them, and so do the various institutions. In other words, it is a
society of people who are subject to institutions that are de facto authorities,
and where, for example, if A regards itself as an authority over another
authority, B, then harmony prevails if B accepts the authority of A, and so on.

Note: the test of de facto authority is one of attitude, willingness to put up

with the other. It does not depend on any reason for the attitude. There may
be various reasons, real or imagined, or none.

A political society of this kind is sovereign if no authority outside it claims to

have normative power to rescind decisions of its authorities.

There is one more point to make before returning to international trends: one
of the most important features of political societies is the degree to which they
are healthy. Their health consists in a measure of solidarity among the people
in that society, which manifests itself most importantly in the degree to which
they are willing to make sacrifices, or to suffer disadvantages for the sake of
other members of their society, and the degree to which they take their
society to be, with all its shortcomings, basically decent and morally o.k. The
health of a society assures its internal stability. Its absence subjects the society
to inner tensions and disintegrative tendencies.

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This provides us with an idealised picture of an international society of

sovereign states: They are subject to law in their inter-relations, that is moral
law and customs. There are also treaties, binding by the agreement of the
contracting states, but no supranational authorities.

A Clarification regarding International Customary Law: My remarks expressed

a conventional and traditional view of the nature of customary international
law. One may doubt whether it was ever true to the reality of IL. I will not
express a view on that. But I want to put to one side two challenges to this
view: first, for a long time some International Lawyers felt challenged and
unappreciated by other lawyers who doubted that international law was law at
all. Not that it was not state-law. That is obvious, but that it is not law. Some in
their anxiety to rehabilitate it as law devised interpretations of customary law
as the enactments of communities and such like. These were unnecessary
fictions. More serious is the contemporary challenge that regards much
customary law today as the product of multilateral treaties (given some
additional conditions). Much has been written about the changing faces of
customary IL today, and it is fascinating stuff. I avoid it because I am referring
here to the older kind of customary IL.

4. The Eroding Trends and their Outcome

Now back to the growing legalisation of international relations: In itself the

subjection of states to norms not of their making does not affect their
sovereignty. Most people know that they are subject to moral norms, and
many either identify those with social practices, or at any rate know that states
are subject to social practices, local, or global, with no loss of sovereignty. (We
can think that all such norms, including international ones, while binding on
states, require some form of incorporation to be reflected in their law).

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The legalisation of international relations leads to reduction of sovereignty

because de facto it brings in its wake international authorities that claim
superiority over state authorities, in at least some of the matters within their
jurisdiction. This can take the form of claiming that state institutions lost their
power in certain domains, so that matters within these domains must be
handled directly by those international bodies. More commonly, and I will
refer only to this kind of limitation of authority: the jurisdiction of state
authorities remains unaffected (or largely unaffected) but their decisions can
be overturned on appeal or via some other process by international
authorities. Or, the international authority can impose a duty on state
authorities to refrain from acting on their own rulings that conflict with its.

Claims to such powers by international authorities limit the sovereignty of

states, and if the trend continues they will do so more and more.

Sovereignty: Survival and Decay

As things stand the erosion of sovereignty does not threaten its survival. No
alternative to sovereignty appears on the horizon. The European Union is
perhaps the clearest potential exception: an ever greater union may be taken
to have, as its ultimate goal, an end to the sovereignty of the member states,
and their absorption into one federal entity. But political trends indicate that
that is not a realistic prospect today. They manifest a strong preference for
separate sovereignty, and against transfer of power to the Union. To mention
but one example: The German Federal Constitutional Court in its decision
about the Lisbon Treaty has established that Germany’s Basic Law limits in an
unamendable way, the degree to which European integration can erode the
sovereignty of Germany (Judgment of 30 June 2009 - 2 BvE 2/08). Similar
trends are visible in other parts of the world.

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There are exceptions. But they are largely confined to countries recently
emerging from being subject to oppressive regimes or to foreign domination,
for whom adoption of international standards and joining international
organisations are desirable as signs of being admitted into the ‘international
community’, and becoming respectable. Recent developments in the former
Eastern Bloc show how superficial such tendencies often are.

Resistance to loss of sovereignty is everywhere powered by desire to retain

local identity.

The Emerging Shape

Which way are we going? What is the shape of things to come? Needless to
say I offer no answers, merely some observations. Developments like the ones
we noted need not erode the jurisdiction of internal authorities, nor need they
erode their sovereignty. They can be confined to merely adding to the norms
that bind sovereign authorities.

But they are very likely to lead to erosion of sovereignty, though in a

fragmented way, and towards fragmented institutions. Again there may be
exceptions and the EU could be one of them. These exceptions apart, what we
see and are likely to see more of are the strengthening of international
institutions, and the emergence of new ones, which erode sovereignty without
replacing it, simply because each one of them has limited jurisdiction and their
proliferation leads to an erosion of state sovereignty in favour of a fragmented
array of international organisations.

5. Institutional Fragmentation may be Welcome:

I hope that you will bear with me if I briefly survey some points for and against
fragmentation, suggesting that on balance it may not be unwelcome.

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1) It will reduce the resistance to a big world government.

2) It may generate a desirable balance of power capable of correcting policy

faux pas through negotiations and bargaining among institutions.

3) It may generate conditions that favour diversity and sensitivity to local

needs, perhaps through endorsing principles of subsidiarity.

Needless to say, fragmentation means that the hankering for world

government will remain unassuaged, but then it is based on a series of
mistakes

1) mistakes about obedience to rules: I suspect that adherents to the

ideal of world government believe that if only there will be a
common authority issuing rules addressed to everyone, with the kind
of enforcement institutions we are used to in sovereign states
operating on a global level, peace and order will prevail. But levels of
compliance with law are enormously varied, and depend on many
factors, which vary across the globe.

2) mistakes about the likelihood that there will be more justice or

welfare under a world government, rather than that it will lead to
more injustices and to greatly entrenched pockets of poverty. I know
of no reason to believe that.

3) more specifically, I suspect that the dream of a world government is

nourished by awareness of the limitations that territorial sovereignty
involves, of the impotence of governments to cope with various
problems because their jurisdiction is limited. Criminals can escape
etc. etc. These limitations are of course real. But there is every

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reason to think that a world government will have its own limits,
even though they will take different forms.

In brief, much more than law is needed to cope with the injustices and other
undesirable aspects of life today. Needless to say, how much good a world
government may bring will depend on its shape - but why assume that it will
have, or that it will for ever keep the preferred shape?

I should add that some objections to world government may also be ill
founded. For example, a matter particularly close to my heart, it is sometimes
complained that governmental authority is legitimate only if it is a form of self-
government by its subjects, and that world government is too big, remote and
anonymous to meet this condition. True, but so are state governments, and
indeed all governments except those of very small and cohesive communities.

To be taken more seriously is the worry that a world government will impose
uniformities that do not respect the diversity of cultures and ways of life, and
the interest in autonomy (communal self-rule) needed to protect them. It is
not that world government must disregard these concerns. It is merely that it
is very likely to violate them.

6. A Normative Framework

Even those who would agree with my observations so far will find them
unsatisfactory. They are a scatter of remarks, which may indeed hang together
in some way, but which do not arise out of a general normative framework
guiding the assessment of international bodies and the laws that govern them
and that they apply to those subject to them.

Embracing subsidiarity principles provides an important step towards such a

framework. A subsidiarity principle specifies that ‘a central authority should

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have a subsidiary function, performing only those tasks that cannot be

performed effectively at a more immediate or local level’ (OED). That is, a
subsidiarity principle specifies that, regarding a certain domain, institutions
have legitimate powers only if they pursue worthwhile ends that can be better
secured by them than without any institutional intervention or by less
centralised institutions. Much more is needed to clarify the idea. I will just add
that the principle is to be understood to include a comparative measure: their
ends are worthwhile if achieving them does not have too severe undesirable
consequences, etc. For the rest I rely on our familiarity with the concept, which
derives from Catholic social doctrine, and is familiar in the European Union.2

Principles of subsidiarity introduce the question that is crucial for judging the
case for more centralised authority: Would it be more secure in realising
desirable ends than the way things will work out when relying on no authority
or on less centralised authorities only?

By a straightforward and common understanding subsidiarity principles work

like this: There is a good that people would benefit from, or that they are
entitled to have, say educational opportunities, protection from violence,
health care, and the like. Under some circumstances it is possible to have it
with or without institutional intervention; however, it may be that the state, or
the city, are better or will be better at securing it than any less central
authority. In which case the subsidiarity condition of legitimacy is satisfied. So

2
Pius xi in his encyclical Quadragesimo anno: "It is a fundamental principle of social
philosophy, fixed and unchangeable, that one should not withdraw from individuals and commit to
the community what they can accomplish by their own enterprise and industry. So, too, it is an
injustice and at the same time a grave evil and a disturbance of right order, to transfer to the larger
and higher collectivity functions which can be performed and provided for by lesser and subordinate
bodies. Inasmuch as every social activity should, by its very nature, prove a help to members of the
body social, it should never destroy or absorb them" (79)

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understood the subsidiarity condition does not exhaust the conditions for
legitimacy of institutional authorities. I will conclude by examining two further
considerations.3

There may be a value in the existence of a political institution that cannot be

realised independently of such institutions. Any institution functions through
the activities of individuals involved in it, as officials, voters, etc. Thus, the
existence of political institutions provides opportunities for people and some
of them cannot exist except in such contexts. One paradigmatic example is the
opportunity to be a citizen of a democratic country, that is a citizen who has a
right to participate in the public life of the institution, as a voter, a candidate,
or merely someone who can publicly express his views on public affairs. This
opportunity adds the possibility of a rich and potentially very rewarding
dimension to people’s life, which some will take advantage of while others will
ignore.

There can be, therefore, a case for political institutions that says: even though
achieving some worthwhile goals would be jeopardised by the institution its
existence is justified because by its very existence it secures other, more
important, ends that cannot be reached without it. For example, democratic
citizenship.

It would be interesting to explore whether the existence of super-state

organisations realises such ends. It is not difficult to sketch an argument that
membership of a neighbourhood swimming pool and local park committee,
while providing opportunities for social and political involvement with
neighbours, does not involve all the desirable opportunities that citizenship of
a state provides. But is there more value secured by the very existence of

3 As intimated subsidiarity principles can be given a more comprehensive, if less natural,

reading that subsumes under them the two conditions I will discuss and others.

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super-national organisations than is secured by state citizenship? If not then

the legitimacy of super-national institutions depends, broadly speaking, on
instrumental considerations. That is not the way most people understand the
case for state sovereignty. States have emotional and symbolic significance for
people, which goes beyond their success in securing services and
opportunities.

7. The Super-national Dilemma

Now we arrived at the heart of our predicament. It is not whether fragmentary

erosion of sovereignty is inferior to world government. It is likely to be better
than world government. It is whether super-national organisations can
succeed simply by being more efficient ways of securing common services and
opportunities without their existence having intrinsic, non-instrumental values.
That is the dilemma because arguably sovereign countries can succeed
instrumentally, can succeed by meeting the subsidiarity condition, only
because they are perceived by so many of their members as having additional
value, and in particular, citizenship in such states is taken by many to be
intrinsically valuable.

The case for that conclusion is simple enough: The effectiveness of

governments in securing services and opportunities depends on those subject
to their rule being loyal to them and having a strong sense of solidarity with
each other. Without loyalty and solidarity the ability of governments to require
restraint and co-operation from people, including restraint and co-operation
that people perceive to adversely affect their personal interests, is severely
undermined. Official measures would meet resistance and persistent attempts
to avoid compliance. Trying to overcome such resistance will call for
interference with people’s privacy and restricting their freedom. The more

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limited the loyalty and solidarity the more likely is the government to resort to
repressive measures that undermine its moral legitimacy.

But in our world, loyalty and solidarity, the willingness to forego personal
advantages for the sake of anonymous others, i.e. others who are not family or
friends, are not commercial commodities. They depend on valuing common
citizenship for its meaning, for its symbolic value.

Can it be different with international super-state organisations? Can they

thrive because of their instrumental value only? There is strong evidence that
often the answer is affirmative. The co-ordination rules for international
aviation, for radio and internet communications, for international postal
services, and many others show the value of international organisations that
succeed, and whose success is essential for life in advanced societies. Yet in all
such cases the instrumental case for co-ordinated regulation is sufficient to
secure it.

The evidence also strongly suggests that this kind of success is limited. It is
tempting to find principles that explain the limits. Perhaps success is confined
to areas where co-ordination does not involve significant self-restraint and
therefore where people do not feel that they are making ‘sacrifices’. Such
explanations have some value. But it is also the case that controversy and
resistance can arise accidentally, and that they can be manipulated. Is
opposition to various international trade agreements currently being
negotiated, or to genetic manipulation of crops, etc., due to genuine interests
of the objectors, or is it manipulated by interested parties? For our purposes
what matters is that without loyalty and solidarity, important, perhaps the
most important, super-state organisations meet growing difficulties. State
sovereignty may be eroding, but there are few if any super-state organisations

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that are perceived as having more than merely instrumental value. Therefore,
few if any attract loyalty and solidarity. And therefore, even their instrumental
success is in jeopardy. The problem affects all regional organisations like the
EU, the African Union, and the UN. It also affects all human rights
organisations. A revival of – not very attractive – nationalism embracing
extensive state sovereignty is a real possibility[has already emerged? Ukip?].

8. Misleading Arguments

Some arguments against super-state organisations enjoy great popularity in

Britain and elsewhere in spite of being confused or based on false premises.
One is an argument against super-state bodies because they are not
democratically governed. The argument is misguided for it is not based on a
cogent understanding of the nature of democracy and its uses. Another is the
argument that says that we want to govern ourselves rather than be governed
by … (the bureaucrats in Brussels etc.). To the extent that this argument
presupposes that one is more free when one’s ability to successfully form and
pursue goals is limited by market forces or naked threats and coercion than
when one’s options are limited by institutionally adopted and enforced
standards it is confused.

The valid concern that sometimes motivates adopting these arguments is a

worry that super-national organisations are likely to be blind to the diversity of
different cultures and to different legitimate ways of allocating opportunities
and processing disputes. Absent sensitive acknowledgement of legitimate
diversity, institutions will not enjoy loyalty and will not be underpinned by
solidarity among those subject to them, and they will fail to acquire positive
symbolic meaning for their subjects.

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9. What are the Perceived Advantages of Sovereign Nations?

It appears, to me at any rate, that the legitimacy of super-national institutions

depends on their recognition of value pluralism and their ability to adjust their
structures of government and their aims and modes of activity to value
pluralism. That is necessary for them to be responsive to local needs, interests,
to diversity in tastes and preferences, to local traditions, ways of life and ways
of doing things (including business).

Perhaps value pluralism indicates a case for limiting the growth of super-
national organisations. Perhaps sovereign states, negotiating international
agreements when they are useful, are the best protectors of legitimate value
pluralism. One great advantage of trusting the task to sovereign states is that
they can respect value pluralism without recognising it. Each state may respect
the values that are recognised by its inhabitants, while denying the legitimacy
of other ways of life enjoyed by the peoples of other states, which luckily it
cannot do much to affect. If super-national organisations are to be trusted
with that task they will need to recognise the legitimacy of plural values, and
will encounter mistrust and hostility from people who deny value pluralism.

If a culture of respect for value pluralism can spread around the world then
perhaps international organisations can adjust to respecting value pluralism.
Subsidiarity principles, when applied much more aggressively than is the case
in the European Union at the moment, are themselves important instruments
for protecting pluralism. Fragmentation leading to checks and balances can
also serve a useful role, when motivated to protect value pluralism.

But they are not enough. What is needed is an interpretation of universal

standards, such as the basic principles of human rights, in a way that allows for
diverse correct interpretations of their requirements and applications in

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different circumstances. Call this simultaneous interpretive pluralism, namely

a method of, or approach to, interpretation allowing that incompatible
interpretations can all be valid at the same time and in the hands of the same
court.

To a degree the European Court of Human Rights, in interpreting the European

Convention of Human Rights, allows for such interpretive pluralism through its
doctrine of a margin of appreciation. But the pluralism I point to is not to be
confused with a band of toleration of mistaken judgments due to the different
conditions and traditions of different national courts. Nor is it to be confused
with exceptions like those of Article 10(2), which provides that the right to
freedom of expression may be ‘subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.’ Here the matter in
hand is conflict between different values. Interpretive pluralism allows for a
plurality of incompatible interpretations of one value.

In brief, the legitimacy and success of super-national institutions and their

ability to replace some of the functions of states, thus eroding states’
sovereignty, depend on their ability to develop loyalty and broaden people’s
sense of solidarity. And these depend on the people of the world coming to
recognize the validity of value pluralism, and on super-national institutions
proving able to embody in their constitutions and activities recognition of
legitimate value pluralism.

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*** The End ***

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